In a judgment dated 6 October 2010, Bakker vs. Union Cycliste Internationale, the Federal Swiss Supreme Court (“Supreme Court”) refused to grant the revision of two arbitral awards rendered by the Court of Arbitration for Sport (“CAS”) involving a Dutch professional cyclist (“Applicant”). In the first award dated 20 April 2006, Erwin Baker had been banned for two years for violating the anti-doping rules during a race in Spain. In the second award dated 5 May 2006, he was convicted for having committed the same offence in Canada and banned for life. On 28 April 2010, the Applicant applied for a revision of both awards. In its judgment, the Supreme Court set out in detail the conditions under which the revision of an arbitral award based on the discovery of new facts or evidence can be granted.
In the first arbitration before the CAS, the Applicant had been convicted for doping based on the laboratory results of A and B samples. He argued before the Supreme Court that he had not been provided with the 80 pages full laboratory report containing the name of the technicians who had carried out the analysis underlying his conviction. Instead, he had only received the 2 pages counter-analysis of the B sample. He submitted that his request issued during the arbitration hearing in relation to the production of the full laboratory report of the B sample had remained unanswered and had probably not even been recorded by the arbitral tribunal. According to the Applicant, it was only on 29 January 2010 that he received the full report, which showed that the analysis of the A and B samples had been – at least in parts –carried out by the same laboratory technicians. This is prohibited under the International Standard for Laboratories and the Applicant concluded that he should thus have been acquitted in the first arbitration, which in turn would have led to more lenient sanctions in the second arbitration. On 28 April 2010, he therefore requested the revision of both arbitral awards.
In the introduction to its legal analysis, the Supreme Court underlined that, according to its jurisprudence, the revision of an arbitral award does not lead to a new decision on the merits by the Supreme Court. Rather, after revision, the matter must be returned to the arbitral tribunal that rendered the decision, or to a newly constituted arbitral tribunal, which should render a new decision.
The Supreme Court stated that facts or evidence discovered only after the arbitration proceedings can justify the revision of an arbitral award, provided that they were unknown or could not be submitted during the arbitral proceedings despite the petitioner having acted diligently. Moreover, a revision is justified only if the newly discovered facts or evidence would have been relevant to the decision insofar as they would probably have led to a different decision. In determining this relevance, the Supreme Court has to base its assessment on the reasons provided in the award.
Furthermore, a revision requires the existence of a legally protected interest on the applicant’s side, meaning that the revision must be suitable for the applicant to obtain the desired success on the merits. In the case at hand, the Supreme Court noted that the sentence of a two years ban in the first arbitration proceedings had already lapsed. A revision of the first award could therefore not lead to any success in these proceedings. In relation to the second arbitration, the applicant had not even submitted that the allegedly newly discovered evidence would have directly influenced the arbitral tribunal’s decision. In fact, the applicant had only argued that the revision of the first award would lead to an acquittal, which would in turn influence the decision in the second arbitration proceedings. However, the Supreme Court did not endorse the argument, finding that a revision of the first award would not mean that the Supreme Court could acquit the Applicant in relation to the first arbitration. Whether the Applicant would indeed be acquitted would be subject to an arbitral tribunal’s decision and could not be anticipated by the Supreme Court.
The Supreme Court further found that the Applicant’s passivity after the alleged rejection of his request for production of the full laboratory report on the B sample also precluded a revision of the award. The Supreme Court ruled that the Applicant had at least been aware of the report’s existence and would have been under the duty to act diligently by exhausting all legal remedies to obtain the report. The mere fact that the arbitral tribunal had rejected the Applicant’s request for the production of the laboratory report was not sufficient to justify a revision but could only have been the subject of an application for setting aside the award, which the Applicant had not made.
For these reasons, the Supreme Court dismissed the application for revision.
Summa summarum, it seems from the decisions of both the CAS and of the Supreme Court that shortcuts will rarely lead to success, in sport like in legal matters. When the revision of an arbitral award is being sought, the court will be restrictive in determining whether the newly discovered facts or evidence could indeed not be accessed during the proceedings. In particular, the legal instrument of revision under Swiss law cannot be used to make up for faults and omissions in the arbitral procedure. The petitioner must further prove the relevance of the nova, as well as his legal interest in the revision of the award. The lack of even one of these prerequisites will make an application for revision futile.
